Fan Creativity in Gaming and IP Infringement

By: Yixin Bao

Gaming is known to be a big and rapidly growing industry. In recent years, the COVID-19 pandemic has contributed to a surge in gaming activity and revenue. Many people turn to gaming as a form of entertainment during their time at home. According to The NPD Group, the average time people spent on gaming rose from 12.7 hours per week in 2019 to 14.8 hours per week in 2020 and to 16.5 hours per week in 2021. Statista data further shows that the estimated global gaming market will increase to $268.8 billion annually in 2025 from $155.89 billion in 2020. 

There are many different types of gaming. The most commonly recognized ones include mobile gaming, console gaming, and PC gaming. In addition, new categories have emerged, such as esports and virtual reality gaming. With the increasing popularity of gaming and the increasing number of players, the gaming industry is expected to continue to grow in the future. 

As popularity of the gaming industry is on the rise, so are related intellectual property infringement issues. Intellectual property can include inventions, artistic works, designs, and names that are used in commerce. Normally, IP infringement includes patent infringement, copyright infringement, or trademark infringement. IP infringement can result in legal action taken by the owner against the infringing party, including but not limited to injunctions and monitary damages. 

A “fan” or “fanatic” is defined as someone who exhibits intense admiration and enthusiasm for something or somebody. Without a doubt, the gaming industry has its own fans. In fact, this number can be huge. For example, League of Legends (“LoL”) is known to be one of the most popular online games in the whole world. It is said that there are currently 180 million League of Legends players right now in 2023. Esports also heavily influenced the growth of the game’s popularity. Each year, the World Championship is organized so that teams from all different countries gather together and compete for the best team. In 2018, 99.6 million unique viewers watched the World Championship. Although it can be difficult to accuralty measure how many fans a game has, as some will not identify themselves as fans, it is reasonable to assume LoL’s fanbase is enormous. 

Many fans of the gaming industry make their own content. This includes, for example, creating new characters or inventing new storylines based on the original characters and artworks. On one hand, this benefits the gaming industry because fans give free promotion for the games. On the other hand, however, this is when the fan creativity ends, and IP infringement occurs. Kostya Lobov, a partner at a United Kingdom (“UK”) law firm, discussed the balance between fan creativity and IP infringement. Lobov admitted that companies didn’t want to alienate genuine fans, but some bad actors tried to profit from making use of the others’ IP rights. This might lead to trademark and copyright infringement. This also happens in the United States. 

Gaming companies often issue take-down requests in response to content created using their intellectual property. While some companies have a zero-tolerance policy and remove most potentially infringing content, others are more lenient and only take action when the content is being used for commercial purposes. Although fair use may allow for some creative use of copyrighted material without permission, it is important for fans to be cautious. Non-commercial use may support a fair use argument, but it is not definitive. Other factors, such as the nature of the copyrighted material, may also play a significant role. Overall, as long as one creates something that uses the gaming company’s IP rights, he or she bears a degree of risk of infringement. 

In conclusion, the companies in the gaming industry should consider carefully how to set up their line between fan creativity and IP infringement. There can be thousands of potential content that can technically infringe on the gaming companies’ IP rights. Enforcement can be infinite and difficult if the line is too blurry. The legal actions might also “promote” their games in a negative way. In the end, the gaming industry should learn how to coexist with fan creativity and learn to profit from the efforts of fans while at the same time protecting its own rights.

Into the Dungeon–A Comparative Look at the Original and 2023 Open Gaming Licenses

By: Perry Maybrown

It all started with a leak, which led to a draft, before ending in a retraction.

Wizards of the Coast (WotC) rolled a critical failure when trying to modify their Open Gaming License (OGL)—a license that allows other creators to make use of some Dungeons & Dragons content as building blocks for their own games—after a draft of the updated license was leaked to news outlet Gizmodo. While WotC insisted that little would change, the new license seemed to say otherwise.

The community revolted, leading to promises of boycotts, mass cancelations of subscriptions to D&D Beyond, and a new license called Open RPG Creative License (ORC) from rival company Paizo. Faced with this onslaught, the gaming company chose to back down and keep the OGL intact.


The original OGL (1.0a), published in 2000, offered prospective gamers a perpetual license to “copy, modify and distribute” the open game content making up the Systems Reference Document (SRD). While the SRD changes with each new edition of D&D (excluding the 4th edition, which is a completely separate can of worms), the OGL stays the same and is perpetual, meaning the license has no set expiration date. The mechanics and building blocks for a Table-Top Role Playing Game (or TTRPG) make up the bulk of the SRD, which creates a base from which creators can build their own games. You can’t use the OGL to publish works that use WotC’s trademarks, like the famous dragon ampersand.  

1.0a includes several caveats that creators must follow to not confuse anyone about what is and what isn’t open game content. For one, a complete copy of the OGL must be included with every copy of open game content distributed. To avoid confusion, creators must also label what is open game content. Content can be directly from the SRD, open game content from other game makers, or original works that the creator wishes to add to the proverbial open game content pile. 

The license is far from perfect, however. Most notable is the lack of the  terms “revocable” or “irrevocable” in its text. This omission makes it difficult to know if WotC can terminate the OGL. Only further muddying the waters is section IX of the license. Through this clause, WotC retains the authority to update the license and allows creators to apply any authorized version of the OGL to any open game content distributed under any license version.  

WotC may argue that they can update the OGL and include in the new version language that declares the old to be unauthorized and thus void. However, because the OGL is a long-standing open license, there are legal arguments and evidence that may contradict WotC’s statement and prevent them from deauthorizing 1.0a. Many online have weighed in on the issue, even some legal authorities, with varying conclusions. For now, it’s challenging to say what way a court may lean, but even in that uncertainty, WotC pushed forward with the plan. 

The Leaked Draft

On January 5th, 2023, a draft of the new OGL 1.1 was leaked, and it was a radical departure from 1.0a. The license now limited the OGL to the “creation of roleplaying games and supplements in printed media and static electronic file formats.” Meaning creators could no longer create other media such as video games, videos, plays, or otherwise use open gaming content. There was a misunderstanding because one of the sections seemingly implied WotC would own any creations made under the OGL; however, that reading was likely incorrect. While section III does state that WotC owns both the licensed and unlicensed content, as defined in the OGL section I(A), neither of those categories include content made by the licensee. Licensed content refers to content within the SRD, and unlicensed is content not within the SRD. However, under section X(B), creators would grant WotC “a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.” So while creators would still own their content, WotC would still be allowed to use it. 

Some provisions did remain the same between 1.0a, and 1.1. For example, publishers would still be required to include the license with distributed works and identify anything considered “licensed content.” Some sections were expanded in the new draft, like the termination clause, which now allowed termination for various causes. In addition to these expanded terms, further requirements were also tacked on to the license. Such as a clause detailing the repercussions of terminating the license and an indemnity clause that would shift the financial burden to the licensee in several instances if WotC faced legal action due to the license’s contract. While these modifications were likely made to shore up 1.1 legally, the words “revocable” or “irrevocable” were still not in the new license.

The most significant change in 1.1 was that it had been split into two parts, commercial and non-commercial. Commercial had additional monetary requirements regarding royalties and registration. If someone wished to create content to sell, they were required to register and provide WotC with extensive information about the product and creator, reporting any revenue of more than $50,000. Royalties to WotC were only required once a creator had made more than $750,000 in revenue per year across all products produced under the OGL. Creators would have to send 25% of any qualifying revenue exceeding $750,000. Separate terms and royalty rates were detailed for Kickstarter-backed projects. 

The Updated Draft

Incensed by this update, fans pushed back, leading WotC to respond with a new draft, 1.2. The license was no longer split in two and did not require creators to pay royalties to WotC. Core D&D mechanics were now licensed under the creative commons license 4.0 CC BY. Rather than requiring the full license, creators could now either include the license or display the newly designed OGL product badge on their work. 

Creators were also no longer required to grant WotC a license to use works created under the OGL. Even a new provision under section 3 allowed creators to WotC for copying works (though it does have quite a few restrictions). There was no longer an indemnity clause, though the license bar users from participating in class actions against WotC for activities regarding the OGL. To avoid further conflict, 1.2 finally incorporated the magic words. “This license is perpetual (meaning that it has no set end date), non-exclusive (meaning that we may offer others a license to Our Licensed Content or Our Unlicensed Content under any conditions we choose), and irrevocable (meaning that content licensed under this license can never be withdrawn from the license). It also cannot be modified except for the attribution provisions of Section 5 and Section 9(a) regarding notices.” 

In The End

While 1.2 was created to appease the masses, the die had already been cast, and fans were not ready to accept what seemed to be just a modern rewording of 1.0a. WotC eventually backed down, deciding it was not worth the hassle to update the OGL. It is unclear in the future if any new content will be included from the next generation of D&D or if the OGL will stay as it is, only covering the three SRDs, and other open gaming content created for it. The future of these available licenses is unclear, but at least 1.0a is safe from change for now.

Disclaimer: I worked at Wizards of the Coast from 2019-2020. None of the information discussed in the above article is confidential, or provided directly to me by Wizards of the Coast or any of its agents during or after my year of employment. All documents and sources referenced are in the public domain. 

Virtual Trespass: Not in My Backyard

Picture1By Yonah Reback

Who could have predicted that last summer’s biggest fad would be the reemergence of a Japanese video game whose cultural relevance peaked fifteen years ago? If you had known that Pokémon Go would immediately sweep the nation’s interest upon its release in July 2016, call me—I want your stock tips for this summer. For the rest of us mortals, the game was a surprise hit, quickly drawing the attention of not just kids and gamers, but anyone tuned in to pop culture.  Continue reading